Sunday, September 30, 2007

Supreme Court Faces an Array of Divisive Cases

WASHINGTON, Sept. 30 — The Supreme Court has so many polarizing cases on the docket for its new term that the deep ideological divisions that characterized the last term are all but certain to remain on display after the justices reconvene on Monday.

The conservative majority under Chief Justice John G. Roberts Jr. drove the court to the right in a series of high-profile rulings during the term that ended in June. That performance, as well as a series of books and articles by and about justices, has placed the court in an unusually bright spotlight as the new term opens.

The conservative bloc will not necessarily prevail in every important case. For example, the Bush administration is clearly on the defensive as the court prepares to hear a third-round challenge to policies governing those held as enemy combatants at Guantánamo Bay, Cuba.

But the conservative justices clearly have the upper hand in the all-important task of shaping the court’s docket, a process that in effect shapes the country’s immediate legal agenda. They demonstrated their power last week in accepting 19 new cases, an unusually large number, including an employer’s appeal in a racial discrimination case that could provide a vehicle for limiting remedies available under one of the country’s oldest civil rights laws.

The question in the latest case involving the Guantánamo detentions is whether Congress properly stripped the federal courts of jurisdiction to hear challenges brought by the detainees. The justices had seemed willing to steer clear of the issue in April, when they declined to hear appeals from two groups of detainees.

But the day after the term ended, they reversed course and agreed to hear the cases, an action without modern precedent. Because the reconsideration required the votes of five justices, instead of the four ordinarily needed to grant a case, the development strongly suggested that a majority of the court retains concerns about the current regime for determining and challenging the detainees’ designation as enemy combatants. The Bush administration lost two earlier rounds at the court, in 2004 and 2006.

Among the new cases the justices granted last week was a challenge to a state law requiring voters to provide photo identification in order to cast a ballot, an issue that has divided legislators and judges along party lines throughout the country. Republicans generally stress the importance of preventing voter fraud, while Democrats view these increasingly popular measures as creating unwarranted barriers to voter access. Although the justices granted the case at the request of the Indiana Democratic Party and the American Civil Liberties Union, the action could well prove to be an example of “watch out what you wish for” if the result is to uphold the statute at issue and to encourage other states to follow Indiana’s lead.

The justices also took up a highly visible death penalty case, a challenge to the particular lethal injection method that is used in most states. While the validity of capital punishment, or even of lethal injection, is not at stake, the case will require the justices to take a position on the current meaning of the Eighth Amendment prohibition on cruel and unusual punishment. It is far from clear whether a majority of the justices will read the Constitution as mandating one chemical formulation versus another.

The discrimination case the justices granted on Tuesday, which has attracted almost no notice, could nonetheless produce an important shift in the court’s approach to interpreting statutes. The question is whether a law that bars racial discrimination in business dealings, including employment, also prohibits retaliation against those who complain about discrimination.

Ordinarily, the court grants cases only to resolve conflicting interpretations in the lower courts. But in this instance, every federal appeals court to consider the issue has agreed that the statute does apply to retaliation. For the court to grant a case in the absence of a lower-court conflict — as it did in the case decided in June that invalidated voluntary integration plans in two public school systems — is often an indication that the case has been added to the docket as a vehicle for advancing a particular agenda.

The federal law at issue in the new case was originally part of the Reconstruction-era Civil Rights Act of 1866. Known now as Section 1981, it does not mention “retaliation.” Neither do most other anti-discrimination laws. In the past, that has been no barrier to the court in finding that protection against retaliation is inherently part of protection against discrimination.

But support on the court for an approach that goes beyond the margins of the constitutional text has been shrinking. Two years ago, the court ruled by a vote of 5 to 4 that Title IX, a law that bars sex discrimination in schools, also covers retaliation. Justice Sandra Day O’Connor wrote the majority opinion. It is likely that her successor, Justice Samuel A. Alito Jr., would have been among the dissenters.

Given that the new case, CBOCS West, Inc. v. Humphries, No. 06-1431, does not meet the court’s most important criterion for review, it is likely that a new majority granted it in order to cut off the retaliation claim and perhaps also to issue a broader ruling against finding rights that are not spelled out in statutes.

Here are details of other important cases for the new term.


A year ago, in response to the court’s most recent ruling in favor of a Guantánamo detainee, the Republican-controlled Congress passed the Military Commissions Act, providing that “no court, justice, or judge shall have jurisdiction” to consider a detainee’s petition for a writ of habeas corpus. Senator Arlen Specter, the Pennsylvania Republican who was then chairman of the Judiciary Committee, voted for the measure, but he has filed a brief telling the justices he believes it is unconstitutional.

The Constitution authorizes Congress to suspend the “privilege” of habeas corpus only at times of “rebellion or invasion.” Under the Supreme Court’s precedents, a suspension at other times may nonetheless be permissible as long as adequate alternate procedures exist for challenging a conviction or sentence. So the question in these cases, Boumediene v. Bush, No. 06-1195, and Al Odah v. United States, No. 06-1196, is whether the justices will deem the limited procedures available to the detainees to be adequate.

Voting Rights

Challengers to Indiana’s two-year-old voter identification law, which requires current government-issued photo ID, call it the “most onerous” such law in the country. Voters lacking the proper identification have 10 days to obtain it in order for their provisional ballots to be counted.

A federal appeals court upheld the law, finding that it would prevent fraud while not keeping many people from the polls. The plaintiffs maintain that the poor and elderly would face a disproportionate burden. The underlying question is how the justices will evaluate the competing interests of preventing fraud and protecting access. The cases are Crawford v. Marion County Election Board, No. 07-21, and Indiana Democratic Party v. Rokita, No. 07-25.

Criminal Law

The lethal injection case, Baze v. Rees, No. 07-5439, challenges the use of the most common three-drug lethal injection “cocktail,” which is conceded to place some inmates at risk of severe pain. The Kentucky Supreme Court concluded that the risk was not “substantial” enough to make the particular combination unconstitutional.

The question for the justices is what standard courts should use in evaluating the evidence from which to draw a conclusion on constitutionality, especially in light of evidence that pain can be avoided through a different combination of drugs and attention to a reliable level of anesthesia.

The court will also hear two more cases that address the question of judicial discretion in federal criminal sentencing. The question in Gall v. United States, No. 06-7949, is the justification a judge must provide in issuing a sentence that differs substantially from the one called for by the federal sentencing guidelines. Kimbrough v. United States, No. 06-6330, addresses judicial discretion to mitigate the harsh sentences required for offenses involving crack cocaine.


The Texas courts have refused to accept a directive from President Bush to bypass procedural obstacles and grant a new hearing to a Mexican death-row inmate, following a 2004 World Court decision that the inmate’s rights under an international treaty were violated when he was not given the chance to meet with Mexican officials. The case, Medellín v. Texas, No. 06-984, presents unusual issues of state-federal relations.

Friday, September 28, 2007

Justices to Enter the Debate Over Lethal Injection


WASHINGTON, Sept. 25 — The Supreme Court on Tuesday stepped into the debate over whether the most commonly used drug “cocktail” used to execute prisoners on death row is so likely to produce needless pain and suffering as to be unconstitutional.

The justices agreed to hear an appeal by two men on Kentucky’s death row who argue that the combination of three drugs amounts to cruel and unusual punishment, in violation of the Eighth Amendment.

The case, which comes at a time when challenges to lethal injections have effectively stopped executions in a growing number of states, will be argued in January or February and decided by early next summer. While it is pending, judges around the country are certain to be asked to bar executions in those states that are not already under an official or de facto moratorium.
In 2004, while the Supreme Court was considering an ultimately successful challenge to the execution of juvenile killers, judges blocked all such executions.

Of the 38 states with the death penalty, 37 use lethal injection — all except Nebraska, which still uses the electric chair. Lethal injection was adopted in the 1980s as a more palatable alternative to electrocution, but it has proven increasingly troublesome. Leading medical organizations have told their members not to participate, and lawyers for death-row inmates have produced evidence showing that in the absence of expert medical attention, there is a substantial risk of error in administering the combination of anesthesia and paralyzing drugs necessary to bring about a quick and painless death.

Litigation over the issue has brought executions to a halt in nine states: California, Delaware, Florida, Maryland, Missouri, New Jersey, North Carolina, Oklahoma and Tennessee, according to lawyers at the Death Penalty Clinic at the Boalt Hall School of Law at the University of California.

The issue in the case, Baze v. Rees, No. 07-5439, is not whether lethal injection, in the abstract, is constitutional or unconstitutional; the question is more specific and less conclusive than that. It is, rather, the standard by which courts are to evaluate the evidence that lethal injection, predictably and with some regularity, goes wrong: that a paralyzing drug can leave an inadequately anesthetized inmate with the ability to feel severe pain as another drug stops the heart, but without the ability to move or call for help.

There have been other problems with lethal injection as well. Four months ago, an execution in Ohio was delayed 90 minutes as medical workers struggled to find a vein in the prisoner’s arm into which they could insert the shunts to carry the intravenous lines.

Under the Supreme Court’s precedents on prison conditions, inadequate medical care is not deemed to violate the Eighth Amendment unless it is the product of “deliberate indifference.” Under the court’s death penalty precedents, a method of execution must not be “contrary to evolving standards of decency” and may not inflict “unnecessary pain.”

In rejecting the challenge to lethal injection last year, the Kentucky Supreme Court found that the method did not present a “substantial” risk of pain and suffering, and so met these constitutional standards. “The prohibition is against cruel punishment and does not require a complete absence of pain,” the state court said.

In their appeal, the two inmates, Ralph Baze and Thomas C. Bowling, represented by the Kentucky Public Advocate’s office, said the Kentucky court failed to consider that the risk of pain was “unnecessary,” in that alternative methods of lethal injection could eliminate the chance that inmates would remain conscious but paralyzed. They urge the justices to incorporate “unnecessary risk” into the standard for evaluating lethal injection.

The three chemicals used for lethal injections are sodium thiopental, which renders a person unconscious; followed by Pavulon, which paralyzes the muscles, including those that control breathing; followed by potassium chloride, which causes cardiac arrest. Lawyers have argued that the second drug could be eliminated and that a less painful drug could be substituted for the third.

The Kentucky attorney general’s office, in urging the justices to turn down the appeal, argued that the fact that the three chemicals were so widely used demonstrated that the protocol was acceptable. “Condemned inmates will never run out of ideas for changes to the procedures, drugs or equipment used during lethal injection,” the state said, warning that the Supreme Court would go “down an endless road of litigation” if it accepted the case.

The two inmates were convicted of separate, unrelated crimes: Mr. Baze for killing a sheriff and deputy sheriff who were trying to serve him with a warrant, and Mr. Bowling for killing a couple whose car he had damaged in a parking lot.

In two earlier cases on lethal injection, the Supreme Court removed procedural obstacles to bringing such cases but did not deal directly with the constitutionality of the method. But those two rulings led to an explosion of litigation.

The only time the court ever ruled directly on a method of execution was in 1878, when it upheld the use of the firing squad. In 1999, the justices agreed to hear a challenge to Florida’s use of the electric chair, but the state substituted lethal injection for electrocution before the case could be decided.

In 1972, the court struck down all existing death penalty statutes, but in 1976 allowed executions to resume under newly written laws that gave jurors more precise guidance in an effort to make death sentences less arbitrary. There have been 1,097 executions since then, with Texas accounting for 403. There have been 40 executions this year, 24 of them in Texas.

Here's the latest update!

Monday, September 24, 2007

Black Youth, Conviction in Beating Voided, Will Stay Jailed

NEW ORLEANS, Sept. 21 — A court in the central Louisiana town of Jena denied on Friday a request that one of six black teenagers arrested in the beating of a white youth be released from jail.

The ruling came one day after thousands of demonstrators marched through the town to protest law enforcement’s treatment of the defendants.

The decision involved Mychal Bell, 17, the only one of the six yet to stand trial. Mr. Bell was convicted of aggravated second-degree battery this summer, but the conviction was thrown out last week by a Louisiana appeals court, which ruled that he had been mistakenly tried as an adult.

In a closed juvenile court hearing on Friday, Mr. Bell’s lawyers sought to get him released while the local district attorney appeals last week’s ruling.

Citing juvenile court confidentiality rules, Mr. Bell’s lawyer, Lewis Scott, declined to say what had occurred at the hearing, as did an assistant to Judge J. P. Mauffray Jr.

But Darrell Hickman, a lawyer for another of the accused, was at the courthouse in Jena on Friday and confirmed that the judge had refused to free Mr. Bell. “It’s frustrating, that’s what it is,” Mr. Hickman said.

Mr. Hickman said he did not know why the judge was keeping Mr. Bell in jail. In addition to the beating, in which the white youth, Justin Barker, was knocked unconscious and kicked, Mr. Bell has a criminal record that includes arrests for battery and property damage. And another lawyer in the case said Mr. Barker faced medical bills totaling $14,000 as a result of the attack.

The protests in the case have centered on the fact that all but one of the defendants were originally charged with attempted second-degree murder, though those charges were later reduced.

While Mr. Bell remained in jail, a white teenager found himself newly in trouble. On Thursday the police in Alexandria, La., near Jena, arrested that youth, Jeremiah Munsen, 18, after they found hangman’s nooses draped from the back of his pickup truck while he drove near a crowd of people who had taken part in the protest at Jena earlier in the day.

Mr. Munsen was charged with inciting a riot and driving while intoxicated, The Associated Press reported.

orielly on Jena


Bush 1

Bush part 2


Watch all the videos.

How are they different?
What does the public have to say about this event?
How does the article distributed in class differ from the videos?
What really happened?
Which of the above video clips seems to be the most accurate?

Where do we get our news from?

Thursday, September 20, 2007

first advocate

dennis miller

bill oreilly

wolf biltzer
last advocate

Watch all the videos.

How are they different?
What does the public have to say about this event?
How does the article distributed in class differ from the videos?
What really happened?
Which of the above video clips seems to be the most accurate?

Where do we get our news from?

How are individuals supposed to express anger at the elected officials?

Monday, September 17, 2007

Our Leader.

Mr. Bush shared with the nation his interpretation of General Petraus' report. What seemed to be the focus of his speech? What is something that you agree with that the president said? What question would you have for the president after hearing this speech? Has this speech changed your mind or re assured you of our current position in Iraq?

Friday, September 14, 2007

Cell Phone Ban

Who has juristiction over the school discipline code?

Are students "rights" being violated?

How can rules and laws be changed?

Read article here.

Monday, September 10, 2007

Many Wives

Should we always be judged by our peers? What seems to be the issue int he polygamy case? Does Warren Jeff have a right to practice his religion?

Thursday, September 06, 2007

9/11 Illness

After reading Illness Persisting in 9/11 Workers, Big Study Finds write a brief reflection. How has money played a role in the care of 9/11 cleanup victims? Who is at fault for the illness? What changes in finance need to be made to correct the problem? Is health care a federal, city or individual responsibility?

If you would like to read a follow up article just published on the Times website before you write click here.

Stanley also linked a more controversial article on the same topic from the NY POST.

Tuesday, September 04, 2007

Senior Class 2008

Your first assignment:

After reading the article Bringing School to the Information Age (hyperlinked here) browse through the previous postings and comments on this blog.

Is this format and classroom structure suitable to your learning style?

What benefits can this format present to a classroom?

What drawbacks do you foresee?